(emphasis added)
8 His Honour then went on to consider some of the circumstances which may justify the making of an order that costs be payable forthwith. His Honour said, at [10] - [13]:
"It becomes necessary now to consider the factors which have caused courts to depart from the normal rule in Part 52A rule 9(1) that costs are payable at the conclusion of the proceedings. A convenient and useful starting point is the following passage in the judgment of Priestley JA in Horrobin v Australia & New Zealand Banking Group Ltd (Court of Appeal, 6 June 1997, unreported at 9):
'None of the cases is on all fours with the present one; indeed, a reading of them emphasises the need for cases to be considered by reference to their own particular facts. Nevertheless, those relied on by counsel for H and S show there is a tendency for costs orders to be made payable forthwith and without waiting for the conclusion of further proceedings when the proceedings in respect of which the costs orders have been made are regarded as sufficiently self-contained and detached or detachable from proceedings yet to be heard, whether between the same or associated parties, as to make it seem just for an actual payment to be made in the meantime.'
This identifies the first recognisable category of case, namely, where the application or aspect in respect of which the particular costs order is made before conclusion of the proceedings represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect. Examples of this may be found in Charlie Brown Pty Ltd v Green (New South Wales Supreme Court, McLelland CJ in Eq, 3 July 1995, unreported) and Bagley v Pinebelt Pty Ltd [2000] NSWSC 830.
A second factor which may incline the court to order that costs be payable forthwith is some unreasonable conduct on the part of the party against whom costs have been ordered. That was a factor taken into account by Simpson J in Gattellari v Meagher [1999] NSWSC 1279, although, in the end, her Honour did not think that the particular conduct warranted such an order. A third factor is, as it was put by Giles J in Doran Constructions Pty Ltd v University of Newcastle (New South Wales Supreme Court, Giles J, 16 December 1994, unreported), that there is much to come in the proceedings' and one can see a fairly long time before the proceedings are disposed of. In Horrobin (above), the decision of Priestley JA to order that costs be payable forthwith was influenced to some extent by the fact that the controversy between the parties would run for at least a further year. In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (Lindgren J Federal Court of Australia, 18 August 1995, unreported), Lindgren J said that it may be appropriate for greater use to be made of the analogous provision in the Federal Court Rules, 'particularly in cases such as this one where the final determination of the proceedings is so far away'. "
9 His Honour went on to make an order that the costs order previously made by him be payable forthwith. That was because, among other things, the defendant's costs had been abnormally increased by the application, which was a discrete matter and no final hearing date had been fixed and it appeared that the hearing would not take place until later that year.
10 In North South Construction Services Pty Limited v Construction Pacific Management Pty Limited [2002] NSWSC 286 Bryson J ordered at [35], [36] costs be payable immediately because that order was "quite discrete" from any matter remaining to be adjudicated.
11 In Gattelleri v Meagher [1999] NSWSC 1279 Simpson J at [9] said:
"The discretion provided by r 9(1) is a wide one and appears to me to be unconfined. It is true that given the way the rule is framed, the prima facie position is that costs do not become payable until the conclusion of the proceedings. But the rule is not framed in such a way as to require any specific set of characterisation of circumstances in order to justify the making of an order. There was no material placed before me as to financial consequences for either of the parties should an order be made or not made. "
12 The defendant submitted that the plaintiff's application, raised quite separate and distinct issues. But I do not think so. The application centered upon whether the issues that were to be argued at trial were hopeless and whether the defendant should be required to pay money into Court. The plaintiff was unsuccessful.
13 No final hearing date has yet been fixed, although the plaintiff says it is ready to go to trial. The defendant says that he is not yet ready for trial. I accept that the expense of contesting the plaintiff's earlier application has prejudiced the defendant's financial capacity to continue with the litigation and that is a factor that supports the making of an order that costs be payable forthwith.
14 As I stated in my earlier judgment, by deed of mortgage dated 29 April 2004, and transfer of mortgage dated 9 August 2005, the defendant mortgaged to Perpetual Trustee, as custodian of the Challenger Howard mortgage fund, the land to secure a mortgage advance of $301,000. The mortgage was registered. The plaintiff seeks possession of the property due to default of payments being made in accordance with the provisions of that mortgage.
15 The defendant filed a defence and cross claim. The defence pleads that Mr McAndrew has been at all times since 25 November 1998, including on or about 26 June 2003, 10 December 2003 and 29 April 2004:
"i. A person with significant cognitive impairment as a result of injuries suffered in a motor traffic accident on 25 November 1998, such cognitive impairment including deficits in: orientation; the ability to understand abstract concepts; memory/both immediate and remote; judgment; ability to initiate decisions and perform planned action; and appropriate behaviour to the situation.